Wednesday, 19 June 2013

Uganda: Court battle over look-a-likes

This post has been updated from Uganda: Bottler goes to court on look-a-likesTony Kakooza reports from Kampala that "A new battle
over trade mark rights is brewing in the Uganda beverage industry between the Coca-Cola and Riham Cola brands. Century Bottling Company (CBC) runs the Coca
Cola brand in Uganda while Riham Cola is owned by Harris International Limited
(HIL). CBC The Coca-Cola Company is seeking an injunction from court against further infringement by
Riham over confusingly similar products on account of similarity in brand
colours, packaging, content colour and so on."

"Business pundits had seen it coming for a long time. Riham Cola is a sensational at (sic) has seen the new product taking supermarkets, bars and other outlets across the country by a storm.

At the moment thanks to its low price of Ushs1000 as well as its maker's aggressive marketing strategy that has seen the new product taking supermarkets, bars and other outlets across the country by a storm.

At funerals, Riham Cola is now replacing Mineral Water because it goes at the same price with (sic) bottled water. Even the prestige of drinking soda as opposed to water among the village folks, is driving Ugandans into hooking to Riham soda.

Moreso, at a cost of Ushs2000, one drinks more soda with Riham Cola's 640mililiters (ml)--as compared to 500mililitres of Coca Cola at the same price.For people on the move, Riham Cola is also convi[e]nient as one can buy the soda and take the bottle, dri[n]king it later."

Aggressive competition is not new to The Coca-Cola Company who defend the world's most valuable brand over the last decade, across the globe, on a daily basis. What seems to be in issue for CBC, the bottler, The Coca-Cola Company is the look-a-like packaging which Riham have apparently been slow to change.

Tony observes that "Ugandan trade mark legislation was only recently reformed
with the passing of the Trademarks Act No. 17 of 2010 which repealed and
replaced the colonial era legislation. The fairly new statute made improvements
on registration and enforcement procedures in the protection of trademark
rights."

He mentions that "according to
sources from Harris International Limited (HCI), they are shocked by CBC The Coca-Cola Company rushing to institute
an infringement suit against them when negotiations between the two companies
were still on-going. " Sunrise reports that HCI have filed their defence and that ".. the matter will proceed to an arbitrator, to see if the two parties can sort out their differences. If they fail to agree, the case file will go before Lady Justice Hellen Obura, who will kick off the hearing by framing issues that the two principals would want court to resolve."Afro Leo looks forward to further updates. It is interesting that the bottler seems to have taken action, not Coca-Cola and also, that this appears to be more of a passing off case on look-a-like products than one strictly on trade mark infringement. [update - see comments below] HCI were apparently prepared to change their bottle packaging but are now counterclaiming for damages. It is a proper fight, in the market and, potentially, in the court.

Updated (25 June) pics of the problem - they are very close, says Afro Leo

Darren Olivier

7
comments

Thanks for an interesting piece. I'm curious about the identity of the claimant. As indicated at the end of the piece, it's interesting to note that the claimant is the bottler. If the claim is based on a cause of action akin to passing off, can the bottler succeed without joining Coca-Cola as co-claimant? What is the position regarding accrual of goodwill in a bottling/distributorship arrangement in Uganda?

Jeremy, I received a further update that it is in fact The Coca-Cola Company that has filed the suit and also, that it is part passing off and part trade mark infringement type of claim. Hoping Tony will clarify.

Jeremy, indeed as Afro Leo states, the claimant is indeed Coca Cola and not the other way round. The Century Bottling Company (CBC) owns the Coca Cola brand, distribution and all other commercial rights in Uganda.

As for the matter starting out with arbitration, Ugandan Civil procedural law dictates that litigants have to first satisfy Court that they have explored Alternative Dispute Resolution methods before their matters can be heard by Court. Commercial cases are therefore always channeled through ADR and only proceed to a Judge if ADR fails. I hope this clarification helps.

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